Retrospective laws

Retrospectivity in Australia

  • Definition: Retrospectivity involves laws applied to past events.

  • Legal Context:

    • Not expressly prohibited by the Australian Constitution; Parliament can enact retrospective laws.

    • Common law provides protections for established laws.

  • Presumption Against Retrospectivity: Courts generally assume laws are not retrospective unless explicitly stated. Both State and Commonwealth can enact such laws with qualifications:

    1. Principle of Legality: Clear statutory language is required to express retrospective intention (e.g., Australian Education Union v General Manager of Fair Work Australia).

    2. Parliamentary Scrutiny: Retrospective laws must be thoroughly scrutinized and justified to maintain public trust.

  • International Law Considerations:

    • Aligns with the maxim nullem crimen sine lege (no crime without law).

    • ICCPR Article 15(1) prohibits retrospective criminalization; Article 15(2) allows it under certain conditions.

    • Australia has not incorporated Article 15 into domestic law due to its dualist approach to international obligations.

Development of Retrospectivity in Australian Common Law

  1. R v Kidman (1915):

    • First consideration of retrospective law.

    • Kidman challenged the Crimes Act 1915 (Cth) for actions in 1914; court ruled against him.

    • High Court affirmed Parliament's ability to enact retrospective laws; Higgins J noted they are often unjust.

  2. Polyukhovich v Commonwealth (1991):

    • Examined S 9 of the War Crimes Amendment Act 1988 (Cth).

    • Challenged for retroactively criminalizing actions from 1939-1945.

    • High Court upheld Kidman's precedent, allowing retrospective laws despite Toohey J's concerns about justice.

  3. DPP v Poniatowska (2011):

    • Accused of welfare fraud; Supreme Court found no duty to notify.

    • Parliament enacted S 66A retroactively in response, imposing a legal duty from March 2000.

  4. DPP v Keating (2013):

    • Charged for failing to notify Centrelink regarding income changes.

    • Amendment made notifying required retrospectively from March 2000 criticized as a "statutory fiction".

    • High Court affirmed presumption against retrospectivity, emphasizing need for legal clarity.

  5. NuCoal Resources Limited v New South Wales (2015):

    • NuCoal’s license canceled without compensation following an ICAC investigation.

    • Significant loss to shareholders; inadequate parliamentary scrutiny criticized in context of concurrent legislation.